Tavakoli v Woollahra Municipal Council

[2024] NSWLEC 1791

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tavakoli v Woollahra Municipal Council [2024] NSWLEC 1791

Hearing dates:

5 December 2024

Date of orders:

05 December 2024

Decision date:

05 December 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application no. DA-165/2023/1 for the subdivision of Lot 1 in Deposited Plan 270253 also known as 27 Eastbourne Road, Darling Point to create proposed Community Lot 18, subject to the conditions of consent in Annexure A.

Catchwords:

APPEAL – development application – subdivision of existing Lot to create proposed Community Lot

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 1.5

Woollahra Local Environmental Plan 2014, cl 5.1A(3)

Cases Cited:

Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77

Category:

Principal judgment

Parties:

Sheeva Tavakoli (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/256640

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal against Woollahra Municipal Council’s refusal of development application DA-165/2023/1 for the subdivision of part of Lot 1 in DP 270253 to create a proposed Community Lot 18, and then consolidation of Lot 18 with Lot 17 DP 270253 to create a new Lot being Lot 19 in DP 270253, known as 27 Eastbourne Road, Darling Point (site).

Facts

2. The Council’s Statement of Facts and Contentions dated 9 August 2024 sets out the background to the application and the relevant statutory framework. It records that Lot 1 in DP 270253 is an irregular and non-contiguous Community Property Lot commonly known as the Babworth Estate and includes Babworth House itself which is identified as Strata Plan No 70612.

3. The Lot proposed to be subdivided away for Babworth Estate is an irregular shaped parcel along the foreshore with a primary address to the harbour. No 27 Eastbourne Road, Darling Point is also an irregular parcel, and it contains a large contemporary dwelling house.

4. The site is zoned RE1 - Public Recreation pursuant to the Woollahra Local Environmental Plan 2014 (WLEP 2014).

5. The site has been identified as Land Reserved for Acquisition – Local Open Space on the Land Acquisition Map referred to in cl 5.1A “Development on land intended to be acquired for public purposes” of WLEP 2014.

5.1A Development on land intended to be acquired for public purposes

(1) The objective of this clause is to limit development on certain land intended to be acquired for a public purpose.

(2) This clause applies to land shown on the Land Reservation Acquisition Map and specified in Column 1 of the table to this clause and that has not been acquired by the relevant authority of the State specified for the land in clause 5.1.

(3) Development consent must not be granted to any development on land to which this clause applies other than development for a purpose specified opposite that land in Column 2 of that table.

Column 1	Column 2
Land	Development
Zone RE1 Public Recreation and marked “Local open space”	Recreation areas

6. Relevantly, there are no physical works proposed by the DA.

The hearing

7. The proceedings were listed for a hearing before me on 5 December 2024 and commenced with a site view.

8. Following the site view, the Council adopted a neutral position with respect to the determination of the DA at the hearing – neither opposing or consenting to an approval of the DA – having regard to the recent decision of the Court in Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 (Goldcoral).

9. Having considered the parties’ written submissions and after a view of the site in context, I propose to grant development consent to the DA subject to the agreed conditions.

10. In forming that view, I accept that this application is for “development” as defined in s 1.5(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) – which includes (b) “the subdivision of land”; and applying the Goldcoral interpretation to cl 5.1A(3) of the WLEP 2014, I am satisfied that the proposed DA is permissible. As the Chief Judge reasoned in Goldcoral at [79]:

“…although subdivision of land is development as defined in s 1.5(1) of the EPA Act, the mere subdivision of land by the procuring of the registration in the Office of the Registrar-General of a plan of subdivision without undertaking any physical work on the land, such as the carrying out of a work, does not involve the carrying out of development “on land.”

11. It is to be noted that there is no order for costs under s 8.15(3) of the EPA Act in respect to the amendment and the applicant has given an undertaking not to agitate the costs of the appeal. Each party has agreed to pay its own costs.

12. Accordingly, the Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application no. DA-165/2023/1 for the subdivision of Lot 1 in Deposited Plan 270253 also known as 27 Eastbourne Road, Darling Point to create proposed Community Lot 18, subject to the conditions of consent in Annexure A.

………………………..

S Dixon

Senior Commissioner of the Court

Annexure A (184918, pdf)

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Decision last updated: 06 December 2024